Filed 11/27/13 P. v. Luong CA4/3 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FOURTH APPELLATE DISTRICT 

DIVISION THREE 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

HONG THAI LUONG, 

 Defendant and Appellant. 

 G047220 

 (Super. Ct. No. 08WF2195) 

 O P I N I O N 

 Appeal from a judgment of the Superior Court of Orange County, 

W. Michael Hayes, Judge. Affirmed. 

 Mark D. Johnson, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Kristine A. Gutierrez and 

Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent. 

* * * 
2

 A jury convicted Hong Thai Luong of committing lewd acts upon four girls 

between the ages of eight and 10 in separate incidents as a school music teacher and at a 

tutoring center. (Pen. Code, §§ 288, subd. (a); 1203.066, subd. (a)(7) [punishment 

enhancement for multiple child victims].) He argues the trial court erred in denying his 

mistrial motion when the prosecutor failed to redact the names of two other girls the 

victim mentioned in a videotaped interview with a social worker. Based on the context of 

the interview, Luong argues the jury may have inferred the girls also were Luong’s 

victims. As we explain, the reference was brief, vague, and the context did not 

necessarily suggest the two girls were themselves additional victims of uncharged lewd 

acts committed by Luong. Consequently, the trial court did not abuse its discretion in 

denying a mistrial. Similarly, the prosecutor did commit reversible error or misconduct 

in failing to ensure the names were redacted from the video, or in a separate incident in 

cross-examining Luong. Luong’s challenges are therefore without merit, and we affirm 

the judgment. 

I 

FACTUAL AND PROCEDURAL BACKGROUND 

 In 2008, 52-year-old Luong was a music teacher and choir director at 

several schools, including St. Callistus Catholic School (St. Callistus), and he tutored 

students at the Paramount Learning Center (the Center). C. V. attended St. Callistus, 

where she took music lessons with Luong and participated in the school choir he directed. 

During music class, Luong sat C. on his lap while she played the piano, placing his hands 

on her waist and bouncing his leg up and down. On one occasion when C. was in third 

grade, she helped Luong put chairs away after choir practice and he called her over to 

him, grabbed her hand, pulled her to him, kissed her on the lips and placed his hand 
3

underneath her shirt on her back. C. left the room for after-school daycare provided by 

the school, and reported the incident to her mother that night, who reported it 

immediately to the school principal. 

 That same year, fifth-grader Meagan L., her sister Sydney L., and their 

friend T.T. attended the Center, which was owned by Luong’s girlfriend, with whom he 

had children. Luong fondled 10-year-old Meagan’s breasts under her clothing, while he 

was helping her with her homework. He also lifted Meagan’s head on another occasion 

while she was working on her homework, and kissed her on the lips. 

 On another occasion, eight-year-old Sydney dropped her pencil. As she 

was bending over to pick it up, Luong drew near, pulled her pants open, put his hands 

inside the back of her pants and touched her bottom. 

 T.T. attended the Center when she was nine years old. Luong kissed and 

touched T.T. inappropriately several times at the Center, touching her on her chest, 

between her legs, and on her bottom. He also kissed her on the lips while helping with 

her homework. He put his hand inside T.T.’s shirt, touched her on the “pointy part” of 

her bare chest, and then quickly removed his hand when a boy walked past the room. On 

other occasions at the Center, Luong touched T.T.’s “privacy” between her legs and on 

her bottom. 

 The girls did not tell their parents about what happened because they were 

scared. Meagan, however, did confide in her friend Julie Ann, and eventually she, 

Sydney, and T.T. talked about Luong’s advances. Julie Ann told her mother, who called 

Meagan and Sydney’s father, T. When Meagan and Sydney’s parents found out about 

the abuse, they contacted T.T.’s parents and the police. 
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 T., assisted by a Garden Grove police officer who spoke Vietnamese, made 

a covert call to Luong in October 2008. Luong initially denied touching the girls, but 

then fell back on an explanation that “these touching incidents might have been 

unintentional.” When T. confronted Luong about kissing the girls on the lips, Luong 

explained that if he did that, it was because he kissed his children and grandchildren in 

the same manner. 

 The police arrested Luong and in late October and early November 2008, 

C., Meagan, Sydney, and T.T. were each interviewed by a member of the Child Abuse 

Services Team (CAST). The prosecution played video recordings of the CAST 

interviews at trial, each of the four girls testified, and Luong also testified, denying the 

abuse. The jury convicted Luong of lewdly touching each child in separate incidents, the 

trial court imposed an aggregate sentence of 12 years in prison, and Luong now appeals. 

II 

DISCUSSION 

A. The Trial Court Did Not Err in Denying Luong’s Mistrial Motion

 1. Procedural Background 

 Luong contends the trial court erred in denying his mistrial motion after the 

prosecutor played for the jury T.T.’s CAST interview video that included her reference to 

two of Luong’s other female students. T.T. did not say in mentioning the two names 

whether these girls had suffered any abuse. The parties had agreed before trial to redact 

the names of other minors besides the four victims, and the prosecutor apologized for his 

error in failing to omit all the names. At trial, he inadvertently distributed to the jury a 

transcript of T.T.’s interview that included two female names, Tanya and Jacqueline, but 

managed to retrieve it and replace it before the jury viewed T.T.’s interview. But the 
5

prosecutor did not realize the video itself had not been corrected, and when he played it 

for the jury, it included the two names, which occurred at the end of the video, 

corresponding to the 38th page of the 42-page transcript. 

 The prosecutor explained to the trial court, “[T]his is my error, your honor. 

I apologize. I believed it had been corrected out.” He had submitted the CAST video to 

his “tech services,” “[t]hey were supposed to have edited out the names of Tanya and 

Jacqueline,” and while he had “informed defense counsel those portions had been edited 

out, . . . those edits weren’t actually done.” The prosecutor observed, “I think it’s a minor 

thing that went by very quickly. I don’t know if the jurors caught anything other than, 

hey, these two names weren’t in the reports . . . .” 

 Defense counsel complained the jury had been exposed to excluded 

evidence. The trial court had adopted the parties’ agreed-upon redactions by delegating 

the matter to them before trial. Counsel argued mistrial was the appropriate remedy 

instead of “trying to unring that bell.” According to counsel, only a mistrial would 

suffice because an admonishment to the jury regarding the reference would “highlight[] 

the problem and it just draws more attention to it.” 

 The trial court agreed with defense counsel that “[y]ou don’t want to really 

highlight it.” But the court concluded a mistrial was not warranted. “[I]t was just two 

names. It was inadvertent. I don’t think it changes the dynamics of what we’re doing 

here. And, frankly, we will know if it becomes an issue for any reason because . . . . The 

only way it could come out as a problem we really have to deal with is if the jury says, 

hey, what about these other two names I thought I heard about? They’re not here 

anymore. [¶] But I have to tell you, at the end of four interviews, they were pretty well 
6

glazed over and, frankly, they were looking up and looking down. So they heard what 

they heard . . . .” 

 Specifically, T.T.’s CAST interview reference to Tanya and Jacqueline 

arose in the following manner. After T.T. told the interviewing social worker about an 

initial incident at the tutoring center in which Luong grabbed her by her wrist and 

touched her with his hand “somewhere on my stomach,” this colloquy ensued: “[Q]: Did 

you ever tell anybody about the time that he was holding onto your wrist? Who’d you 

tell? [¶] [A]: Meagan, Sydney, Tanya and Jacqueline. [¶] [Q]: Okay. Did you tell 

them on the same day that that happened or on a different day or what? [¶] [A]: Same 

day. [¶] [Q]: The same day? Okay, alright. And did any of them every say, did they 

say that anything happened to them when you told them on that day? Hum? Okay, 

alright. ‘Cause you had said that some, that certain things had happened to each one of 

the other girls? Except for not, not Julie Ann?” (Italics added.) A ringing telephone 

interrupted the social worker, and she did not return to her questions about whether 

“anything” had happened to the other girls, including Tanya and Jacqueline or, if so, 

whether it was similar to Luong grasping T.T.’s wrist or of a different nature. 

 Previously in the interview, the social worker had asked T.T. about a more 

explicit incident in which Luong reached inside her pants and underwear while she was 

sitting down and touched her “on [her] b-u-t-t,” and whether anything similar had 

happened to friends she told about that incident. T.T. mentioned only Meagan and 

Sydney. Specifically, the following colloquy occurred: “[Q]: Okay, so you gave me the 

name of Meagan. Did you tell Meagan? Okay. Did Meagan say anything ever happened 

to her? You’re shaking your head up and down. And then you told Sydney. Okay. Did 
7

Sydney say anything ever happened to her? [A]: It only happened once to her. [Q]: 

And Julie Ann? [A]: No, she’s not in our tutor [group].” 

 2. Governing Law and Analysis 

 We review a trial court's ruling on whether to grant a mistrial under the 

differential abuse of discretion standard. (People v. Cox (2003) 30 Cal.4th 916, 953, 

overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421.) 

“[E]xposing a jury to a defendant’s prior criminality presents the possibility of 

prejudicing a defendant’s case and rendering suspect the outcome of the trial. 

[Citations.]” (People v. Harris (1994) 22 Cal.App.4th 1575, 1580-1581, overruled on 

another ground in People v. Scott (2011) 52 Cal.4th 452; see People v. Thompson (1980) 

27 Cal.3d 303, 314 [cautioning that “evidence that involves crimes other than those for 

which a defendant is being tried has a ‘highly inflammatory and prejudicial effect’ on the 

trier of fact”].) But “[j]uries often hear unsolicited and inadmissible comments and in 

order for trials to proceed without constant mistrial, it is axiomatic the prejudicial effect 

of these comments may be corrected by judicial admonishment; absent evidence to the 

contrary the error is deemed cured.” (People v. Martin (1983) 150 Cal.App.3d 148, 163 

(Martin).) 

 Whether to admonish the jury rests in the trial court’s sound discretion. 

(Martin, supra, 150 Cal.App.3d at p. 163.) The trial court should grant a mistrial “only 

when a party’s chances of receiving a fair trial have been irreparably damaged . . . .” 

(People v. Bolden (2002) 29 Cal.4th 515, 555.) “‘Whether a particular incident is 

incurably prejudicial is by its nature a speculative matter, and the trial court is vested with 

considerable discretion in ruling on mistrial motions.’ [Citation.]” (People v. Wharton
8

(1991) 53 Cal.3d 522, 565; People v. Chatman (2006) 38 Cal.4th 344, 369-370 

[“Whether a particular incident is incurably prejudicial requires a nuanced, fact-based 

analysis”].) 

 The trial court did not err in declining to declare a mistrial. T.T.’s reference 

to Tanya and Jacqueline in the video was brief, vague, and made in the context of telling 

them about an incident in which Luong held her wrist, which did not suggest Tanya and 

Jacqueline were additional victims of Luong. (Cf. People v. Valdez (2004) 32 Cal.4th 73, 

128 [officer’s statement hinted at additional criminality in noting he interviewed 

defendant at “‘Chino Institute,’” but “brief and isolated” remark did not require 

mistrial].) Just as we may not mechanically infer the jury drew the most damaging 

meaning from a prosecutor’s statements (People v. Frye (1998) 18 Cal .4th 894, 970, 

disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22), 

there is no reason to suppose the jury viewed T.T.’s reference to Tanya and Jacqueline in 

a prejudicial manner. The trial court found no prejudicial impact from the stray remark, 

candidly observing that by the end of the video the jury’s attention had waned. We are in 

no position to second-guess this factual determination. 

 Luong argues T.T.’s reference to Tanya and Jacqueline may have tipped 

what he terms “a very close case” against him (bold typeface omitted), given the “length 

of deliberations and the request for a readback” of a detective’s testimony. But “the 

length of a jury’s deliberation is related to the amount of information presented at trial.” 

(People v. Houston (2005) 130 Cal.App.4th 279, 301.) Here, after a six-day trial in 

which 17 witnesses testified, the jury deliberated only 10 minutes the evening they 

received the case, and then approximately five hours the next day. The jury did not ask 

any questions about Tanya or Jacqueline or T.T.’s CAST interview, but instead had 
9

Luong’s account of events in his police interview read back to them. The jury reached a 

verdict a half hour after convening the next morning. The case was not particularly close, 

given Luong’s pervasive conduct in separate locales and the consistency of the testimony 

from victims who did not know each other. The trial court reasonably could conclude an 

admonition would have only highlighted the unredacted reference, and that if it had 

caught the jury’s attention they would have asked about it. The court properly rejected 

Luong’s mistrial motion. 

B. The Prosecutor Did Not Commit Reversible Error or Misconduct

 Luong contends the prosecutor committed misconduct in failing to redact 

the two names in T.T.’s video and by referring to an English-language transcript of a 

covert call in Vietnamese when he cross-examined Luong. As our Supreme Court has 

observed, “[T]he term prosecutorial ‘misconduct’ is somewhat of a misnomer to the 

extent that it suggests a prosecutor must act with a culpable state of mind. A more apt 

description of the transgression is prosecutorial error.” (People v. Hill (1998) 17 Cal.4th 

800, 823, fn. 1 (Hill), overruled on another ground in Price v. Superior Court (2001) 

25 Cal.4th 1046, 1069, fn. 13.) “Because we consider the effect of the prosecutor’s action 

on the defendant, a determination of bad faith or wrongful intent by the prosecutor is not 

required for a finding of prosecutorial misconduct. [Citation.]” (People v. Crew (2003) 

31 Cal.4th 822, 839.) 

 Under state law, prosecutorial misconduct involves “‘“the use of deceptive 

or reprehensible methods to attempt to persuade either the court or the jury.”’ 

[Citations.]” (People v. Espinoza (1992) 3 Cal.4th 806, 820.) State law misconduct 

necessitates reversal where it is reasonably probable the prosecutor’s behavior affected 

the verdict. (Id. at p. 820-821.) “‘A prosecutor’s . . . intemperate behavior violates the 
10

federal Constitution when it comprises a pattern of conduct “so egregious that it infects 

the trial with such unfairness as to make the conviction a denial of due process.” 

[Citations.]’” (People v. Gionis (1995) 9 Cal.4th 1196, 1214-1215.) Such pervasive 

misconduct requires reversal unless it is harmless beyond a reasonable doubt. (Hill, 

supra, 17 Cal.4th at pp. 819, 844.) 

 The Attorney General argues Luong forfeited these contentions on appeal 

because he did not object on grounds of prosecutorial misconduct. (See People v. Riggs

(2008) 44 Cal.4th 248, 298 [noting forfeiture generally applies “‘“unless in a timely 

fashion — and on the same ground — the defendant made an assignment of misconduct 

and requested that the jury be admonished to disregard the impropriety”’”].) We reach 

the issue, however, because in both instances Luong challenged the prosecutor’s specific 

conduct though he did not label it prosecutorial misconduct. Nevertheless, as noted, there 

was no prejudice in the prosecutor’s failure to redact the isolated reference to Tanya and 

Jacqueline in T.T.’s video interview. Absent prejudice, there is no basis for reversal. 

(Cal. Const., art. VI, § 13.) Similarly, the prosecutor’s reference to an English-language 

translation or translations of a covert call Luong received from Meagan’s and Sydney’s 

father (T.) does not require reversal. 

 The translation transcript issue arose when Luong admitted that during a 

recorded, covert call with T. he may have kissed Meagan and Sydney like they were his 

own children, but on cross-examination he denied telling T. it was his “nature to kiss 

children as though they are my own. It’s a habit. Sometimes it’s an accident.” Holding 

a transcript of the telephone conversation between Luong and T. in his hand, the 

prosecutor had begun his cross-examination by confirming, “You had an opportunity to 

review this transcript before you testified; correct?” and he confirmed two or three more 
11

times in his questioning that Luong “reviewed the transcripts of that call . . . before you 

got on the stand,” but Luong steadfastly denied telling T. it was his “nature” to kiss 

children as his own or that it was a “habit” or “accident.” Luong explained, “To me, for 

this translation, so many spot[s] that I disagree [with].” 

 When defense counsel objected to the prosecutor’s references to the 

transcript, it emerged that the defense and prosecution each had their own translations of 

the call, there was no agreed-upon translation, and Luong disagreed with portions of the 

defense’s own transcript. Neither transcript was admitted into evidence. The court 

acknowledged, “[W]hat I think is misleading, and the jury doesn’t know about any of 

this, they’re sitting there thinking there’s one transcript out there and I wonder why I 

haven’t heard it, if I’m guessing what jurors are doing, but really there are two, and I 

don’t think that’s been made clear to the jury.” Luong requested that the trial court 

admonish the jury that no agreed-upon transcript existed, but the court instead simply 

instructed the prosecutor to “stay away” from referring to any transcript. Luong does not 

challenge the trial court’s ruling on appeal, but instead argues the prosecutor’s initial 

references to his transcript constituted misconduct or error and, left uncorrected, the error 

was prejudicial. 

 The prosecutor should not have referred to a transcript without first 

establishing that Luong had seen the same transcript, but it is not more likely Luong 

would have obtained a better trial outcome absent the error, nor was he deprived of a fair 

trial. The prosecutor referred to the transcript only a few times in his lengthy crossexamination, and Luong himself admitted he kissed his students in an affectionate 

manner as if they were his own. 
12

 Luong denied the phrasing in the prosecutor’s transcript that it was in his 

“nature” to kiss young girls this way, or that it was a “habit” or an “accident,” but these 

denials were consistent with his defense. Luong had explained in his testimony that he 

may have kissed Meagan and Sydney in a fatherly way, and he said much the same thing 

to the detective who interviewed him, explaining he did not often bestow kisses but “it 

just, it just probably just happens, you know, um, that kissing is to me like probably . . . 

just like timing, I don’t mean anything wrong, doing anything on purpose[.]” In effect, 

Luong seeks reversal from the bare fact the transcript the prosecutor referred to had not 

been admitted into evidence, but since the transcript simply echoed other evidence 

instead of introducing something new and harmful, Luong suffered no prejudice. And 

given the prosecutor’s two errors in relation to the CAST tape and the transcript were 

relatively minor and isolated in a lengthy trial, there was no “synergistic” due process 

violation requiring reversal based on pervasive or cumulative error. (Hill, supra, 

17 Cal.4th at p. 847.) 

III 

DISPOSITION 

 The judgment is affirmed. 

 

 ARONSON, J. 

WE CONCUR: 

MOORE, ACTING P. J. 

FYBEL, J.